Secret evidence is evidence introduced in closed proceedings to which the individual (and the public) is denied access. In its first Charkaoui decision, in 2007, the Supreme Court of Canada confronted a number of dilemmas arising from the employment of secret evidence to support the executive’s claims against an individual in security certificate proceedings. It is argued here that, although the Court’s reasons recognized and sought to address major limitations arising from the absence of the individual from closed proceedings, they do not adequately address other weaknesses of adjudication in the face of secret evidence. In particular, the Court’s reasons do not convey sufficient concern for (1) the dependency of the judge and special advocates on the executive for access to the underlying record of the investigation; and (2) the pre-eminence of the executive’s institutionalized expertise in matters of national security confidentiality. This argument is presented by way of an examination of broader limitations of proceedings at which secret evidence is used. The Court’s second Charkaoui decision, in 2008, is examined in a postscript to the paper. It is argued that in that decision the Court acknowledges much more clearly, and take steps to address, adjudicative limitations arising from the court’s dependency on the executive in closed proceedings involving secret evidence that originates in the investigative activities of the Canadian Security Intelligence Service.
Van Harten, Gus.
"Charkaoui and Secret Evidence."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.